Issues For The Court To Settle – Published in the Statesman

The appeal of the Vice-President of India to the Supreme Court to clarify the contours within which the principles of secularism and composite culture should operate has taken many people by surprise. But this issue has been talked about earlier also. Intellectuals, activists and even religious heads have spoken on this repeatedly. However, the Vice President’s appeal, after quoting the views of the Supreme Court and intellectuals on it made special impact due to him being constitutional functionary.

Undoubtedly, secularism is one of the basic features of our constitution. At the same time freedom of conscience and free profession; practice and propagation of religion by an individual along with rights of religious and linguistic minorities have been protected as fundamental rights. The protection of the fundamental right is to ensure equality with fellow citizens. On the other hand the concept of secularism is to ensure that the State or government shall not grant patronage to any belief or practice flowing from any religion and maintain equality, either by taking religious beliefs of different religions in equal manner or by keeping equal distance from them.

As the issue has been raised in the context of the Supreme Court, there have been numerous judgments and interpretations of the largest religious following in the country i.e. Hinduism. It has been understood by the Court in different contexts and it has given different definitions. At one point of time it has been understood as a civilization, culture and a way of life born and brought up on Indian soil. That would include Vedic and Brahminical followings in relation to Sikhism, Jainism and Buddhism. At the same time the religious followings relating to Islam and Christianity shall not form part of Hinduism, as defined.

At another point of time Hinduism was defined as a territorial identity. Then it was also said that the Hindu religion is a reflection of the composite charter of Hindus based upon the idea of universal receptivity and also as a way of life. One judgment of the Allahabad High Court went to the extent of saying that “Hinduism cannot be equated as religion but it represents civilization and culture” and “more than several hundred religions within the fold of Hindu culture constitute a separate and distinct religion and each religion group is a religious minority in India. Thus, all religious groups within the Hindu culture are religious minority in comparison to single Muslim religious majority of having population of 18.50 per cent in State of U.P. and 13.80 per cent in all India bases”.

The Supreme Court in 1997 in the case of Shri Adi Visheshwara of Kashi, said that “the nature of Hindu religion ultimately is Monism/Advaita” and explained Monism as a spiritual belief of one ultimate supreme who manifested Himself as many.

The views of the courts in India, explaining the scope of the practices flowing from Hinduism, are very wide. In this background taking a view on whether something is religious or merely a produce of Hinduism or a mix of both would be very difficult. In contrast, the practices flowing from Islam and Christianity etc. would certainly and indisputably become religious practices.

Today, overt religious expressions are prevalent, not because one feels so inclined but in order to create sentiments for religious values affecting the public at large. There is nothing wrong with this, as long as two conditions are met. One, by applying the principle of equality, the followers of other religions should also have similar freedom to use overtly religious expressions and secondly, these expressions remain only persuasive and are not in the nature of strong expectations from others to follow them.

In this perspective, the issue here would be whether the practices, as defined by courts, flowing from Hinduism as defined by the Supreme Court, if in contradiction with the religious beliefs of other groups perceived not to have taken birth on Indian soil, would be in violation of the rights guaranteed under Article 25 of the Constitution or not? The next issue is whether the practice of Hinduism which is pursued religiously can become part of certain unofficial propaganda with tacit support of people in power and still not violate the principle of secularism and not encroach upon the freedom of an atheist? These are a few questions that the Supreme Court may see fit to answer keeping in view the composite culture and founding principles of the Constitution, that is justice, liberty, equality, fraternity and, of course, secularism that was added later. Secularism is only one of the wheels to maintain fraternity, equality and even the justice system. The Supreme Court must take up the issue in an appropriate case and remove the ambiguities that have crept in.

This article appeared in the Print Edition of The Statesman on 15th April, 2016LINK

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